The European Court of Justice (decision 13th February 2014) has sentenced the Italian government over the misapplication of Directive 98/59/EC on the approximation of the Member States' laws related to collective dismissals.
Italian law provides for top-ranked employees (Dirigenti) to be excluded from the application of the collective dismissal procedure. In case of collective dismissal, in fact, Dirigenti are currently protected by collective agreements only. In 2014 the ECJ held that, by excluding the category of Dirigenti from the scope of law 223/1991, Italy failed to fulfil its obligations under article 1, par. 1 and 2 of Directive 98/59/EC.
What is peculiar is that Dirigenti are considered by the same law, when it comes to determine if the 15 employees' threshold has been reached, but – if they are dismissed during the same collective dismissal procedure – they will only benefit from collective agreements provision.
The ECJ deemed this exclusion not to be consistent with EU Directive 98/59/EC. The decision, was taken after the point was raised by the Commission against Italy. This means that Italy, as a Member State, might undergo penalties for failure in fully enacting the Directive, but the decision has not – for technical reasons related to the proceeding in which the principle was established – direct effects on how law 223/1991 should be applied.
Therefore and at this stage, the decision does not change national legislation nor trigger a different interpretation of application of the same. However, it might orient Italian judges to rule in favour of the application of the discipline on collective dismissals also to Dirigenti. We expect the Italian government to enact a law complying with the EU Directive soon.
This article is part of the Southern Europe Employment Law Update for December 2014